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Monday, March 17, 2014

Yes, the CIA Really Would Have Destroyed the Panetta Review

Sen. Feinstein asserted in her speech last week that the reason why the SSCI removed a copy of the internal Panetta Review from the CIA facility and took it to the Senate -- an action now subject to a DOJ criminal referral -- was the "need to preserve and protect the internal Panetta Review" (my emphasis).  Sure, Feinstein cited the CIA's destruction of the interrogation tapes years ago, but could the SSCI really have a reasonable, justifiable fear that CIA could destroy the Panetta Review? The answer is yes and here's why.

Red Flag: The "Draft" Panetta Review

Every CIA public assertion about the Panetta Review thus far raises a distinct red flag. "It wasn't a review, Senator, it was a summary," Brennan retorted to Udall.  It was never  a "formal study" said former Director Panetta. They were "drafts" "incomplete" and never circulated to the Director, asserted Panetta's former chief of staff. All these statements purporting to undermine the importance of these documents simultaneously suggest strongly that the CIA has also treated them as non-substantive drafts or -- in legal record-keeping jargon -- "working files," which the CIA would not have a long-term legal obligation to preserve.  

The SSCI's clever request for a "final version" of the Panetta Review points to the same issue.  There may be no final version, by design.  That is, CIA may have wanted them to remain "pre-decisional" drafts that would be exempted from disclosure and, ultimately, could be disposable.  Note the language in the redacted CIA emails Politico obtained, in which the CIA General Counsel's office was concerned at one point that the review was going "too fast" -- for a perpetual draft, you don't want to be too close to finished at the wrong time.  

Another possibility is that, in the CIA's view, the "final version" of the Panetta Review is, in fact, the "formal" response the CIA delivered last year to the SSCI report. After all, the intent of the Panetta Review, we are told, was simply to "catalog and analyze" the documents that were being provided to the SSCI and Brennan's letter (via Politico) states that the Panetta Review documents were "written in connection with the CIA's response to the oversight inquiry" (my emphasis).  In this scenario, the Panetta Review documents become part of the draft "working papers" of the formal CIA response.  Sure, they might seem to be contradictory to the final report, but, the CIA would say, that is simply part of the "pre-decisional" process, our final, official position is what is in our response to the SSCI.

Under both a CIA records schedule and a federal regulation, whether "working files" have to be preserved as records essentially comes down to the extent to which they (1) are circulated within the agency (see, e.g., "never circulated to the Director") and (2) contain unique substantive information (see, e.g., "it was just a summary").  The detailed standards are, to say the least, elastic and open to significant interpretation, and manipulation.

But does the CIA really manipulate such standards in order to destroy important documents? A few decades of examples . . .

In investigating CIA assassination operations, the Church Committee in the 1970s highlighted how its inquiry was hampered by CIA document destruction, noting in particular that the CIA had undertaken an "internal study of the Castro, Trujillo and Diem assassination allegations" but that "unfortunately, the working papers relating to that investigation were destroyed upon the completion of the Report" by order of the CIA Director (my emphasis).

Remember when the N.Y. Times revealed in the 1990s that the CIA had destroyed almost all of its documents on the CIA's role in the 1953 coup in Iran in the 1960s?  The CIA publicly expressed concern, but later quietly justified the destruction to NARA by asserting (p. 29) that the destroyed documents were, again, simply "working files." That is, those few documents that remained were the CIA's only "official" records on the coup.  NARA didn't accept that and found that it was unauthorized destruction. According to a former CIA historian, files on CIA operations in Guyana and Indonesia met the same fate, but again the CIA asserted that the destroyed documents were just "working files." The CIA nevertheless publicly stated that "strict procedures now insured that no valuable historical records" would be destroyed.

Later, however, NARA found more broadly in its 2000 evaluation of CIA record keeping that among the "serious shortcomings" within CIA was that it continued to "inappropriately" treat certain "files as non-record working papers or 'soft' files that could be destroyed at will." 

It was after all of this (and while the CIA was supposedly taking remedial measures to address NARA's critical findings) that the CIA determined that live videotapes depicting waterboarding were also not "records" that had to be preserved. My overly-long article on that is here, but the short version is that the CIA treated the tapes, again, as essentially working papers because -- as Feinstein repeated at the top of her speech -- the CIA incredibly asserted that that the written interrogation records made the tapes unnecessary, the equivalent of duplicative drafts, or, as the CIA told Senators in 2004, the tapes were just an "aide to the interrogations." (Incidentally, the DIA used the "working files" justification in destroying its interrogation tapes of Ali Saleh Khalah al-Marri, but at least later acknowledged it was improper to do so).

Of course, we still don't know the precise details of the CIA's legal argument for why the tapes did not require preservation, because the CIA has still not substantively responded to NARA's 2007 inquiry on the destruction (this 2010 letter was the last correspondence from CIA to NARA -- CIA must still be waiting on that "report" from Durham).  But you know who I'm pretty certain has all the details of the CIA's elaborate legal contortions to justify not preserving those tapes?  The SSCI. 

As the SSCI also knows, it was based on these arguments that two CIA attorneys told Jose Rodriguez just before the destruction (as the CIA Office of General Counsel had many times before) that there was no "legal impediment" to the destruction of the tapes.  One of those lawyers was Robert Eatinger who was also (until last week) the acting CIA General Counsel who Feinstein says is named 1,600 times in the SSCI report and who Feinstein accused of attempting to intimidate the SSCI by referring its staff to the DOJ for removing the Panetta Review.

In summary, the connection Feinstein drew between the need to preserve the Panetta Review and the destroyed CIA tapes was neither rhetorical nor abstract. The CIAs public assertions about the Panetta Review raise the distinct possibility that the CIA General Counsel's opinion on the status of these documents -- at least prior to finding out the SSCI had copies and the current Constitutional crisis -- sounded something like this: "The so-called 'Panetta Review' documents have never been anything other than drafts, the summaries themselves were never finalized into any formal report, they were never circulated to the Director, they do not represent an approved, authorized position or official record of the agency.  They are non-substantive working papers. Indeed, given they largely consist of summaries of other classified records they are essentially duplicates. In an abundance of caution, we will retain them while the SSCI completes its investigation, even though the documents fall outside the parameters of the SSCI's document requests and would be immune from an SSCI request in any event, given their privileged, pre-decisional nature.  After the SSCI report is finally complete, the disposition of these papers will be determined in accordance with our normal document retention procedures . . ." I would sincerely be happy to learn that this is inaccurate, but it is enough for the moment that the SSCI might also have reasonably believed the CIA would treat the Panetta Review in this way.

The SSCI's "Imminent" Need to Exfiltrate the Panetta Review

Okay, but even assuming the analysis above is correct, was there really an immediate "need" to "protect and preserve" the Panetta Review that justified the SSCI's removal of it from the CIA facility? Chris Donesa, formerly Chief Counsel for the HPSCI, raised this good point at Lawfare last week, noting that that while the CIA of course could have destroyed the Panetta Review, the CIA "certainly could not have gotten away with it given the Committee not only knew of the materials, but had already reviewed them on multiple occasions."

The answer is that the threat of destruction did not have to be immediate and most likely wasn't. The "imminent" need instead arises from the fact that the SSCI's access and control over its copy of the Panetta Review in the CIA facility was approaching an end because the SSCI was finalizing its report. And as the DOJ has educated us, in determining whether a threat is "imminent" the concept of "imminence must incorporate considerations of the relevant window of opportunity." The SSCI's time to act was rapidly disappearing.

Morever, the SSCI could have easily concluded that the CIA would never let the SSCI retain or remove the Panetta Review from the CIA facility under the normal procedures. The reasonableness of that conclusion has been graphically illustrated after-the-fact by the CIA's potentially unlawful and unconstitutional response to learning the SSCI had these documents.

Finally, the SSCI could have reasonably concluded that there were no other feasible options for securing the Panetta Review that would be likely to succeed. Over at Lawfare Chris Donesa also rightly noted that the SSCI "could have immediately given the materials protected legal status by issuing a subpoena for them." While this is true, the question is whether the SSCI could have reasonably expected it would win the resulting fight over that subpoena, which the CIA would have violently (and fast and furiously) opposed, likely with White House support. During that fight the documents would have remained at the CIA facility, and if the CIA had prevailed, they would have never left. The SSCI was not, and should not have been, willing to take that risk.

As both the SSCI and CIA understand, the significance of the SSCI report is about the long-term legacy of the CIA's detention and interrogation program. If the CIA were the only one with a copy of the Panetta Review, it would not have to destroy it immediately. The CIA would have nothing but time.  It could continue to push its narrative that the SSCI report -- and any SSCI characterizations of the Panetta Review -- are one-sided and inaccurate. The CIA could wait out the furor over the SSCI report and wait until even the most indefatigable FOIA requesters have exhausted their remedies, and then, years from now, the Panetta Review could be quietly and clinically euthanized in the CIA's records center.

In the end, the rubber really only hits the road on that morning -- which could be in 5, 25, or 50 years -- when the CIA's own records are opened to public scrutiny. The SSCI made the right calculation that if it did not act, the Panetta Review would not be in those boxes and the public would not be able to finally compare the CIA's public statements with its internal ones. The CIA would have successfully avoided authenticating the 6,300 page SSCI report as the definitive history of the program through its documentation illustrating that even the CIA itself -- in its honest, internal moments -- knew the SSCI Report to be accurate.  And the CIA would have gotten away with it, because on that day the missing Panetta Review would be a one-day story, in which the CIA spokesperson would recite the same talking points they have always used: the documents were just working files that were not subject to any active judicial or legislative inquiries and they were disposed of in accordance with approved records schedules.

Instead the Panetta Review is a "golden shield" for the SSCI Report that is safely preserved in a Senate vault. Even assuming the worst, that the DOJ determines that the removal of the Panetta Review from the CIA-leased facility was a criminal act by the SSCI, it will still be true that it was a necessary and heroic one.

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